The Middle River Group, LLC

fly fishing, conservation and politics.

Clean Water Act

The Navigable Waters Rule

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The saying goes something like this, “whiskey’s for drinking and water’s for fighting.” It is typically associated with ownership rights in the west. Still, for many years it has resonated with those of us who deal with the changing legal landscape and battlegrounds surrounding the Clean Water Act.

I’ve been working on or following the Clean Water Act jurisdictional issues for most of my conservation career. In 2003, I was the conservation director for the Izaak Walton League of America. We released a study titled “Jurisdiction Under the Clean Water Act: Implications of the SWANCC Decision” (copy available upon request.) Since then, there have been many twists and turns, making this one of the most contentious and complicated issues I’ve ever dealt with.

Where are we today?

In April 2020, the Environmental Protection Agency issued the “Navigable Waters Protection Rule: Definition of Waters of the United States,” aka the “Navigable Waters Rule.” undoing the Obama administration’s work. As Trout Unlimited noted, “This rule replaces a 2015 Rule, which clarified the extent of Clean Water Act protections for small streams and wetlands.  This new 2020 rule not only reverses the clarifications made in 2015 but further reverses protections that have been in place dating back to the 1970s.”

My friend Sam Lungren, MeatEater’s fishing editor, wrote a terrific article, Patagonia Will Sue Trump Admin. Over Clean Water Act, which not only explains the state of play today but gives a solid review of the history of how we came to the Navigable Waters Rule. As Lungren notes, Patagonia, a company I greatly admire, stepped into the arena and joined with Earthjustice in their lawsuit on behalf of the Pascua Yaqui Tribe, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Tohono O’odham Nation, and Fond du Lac Band of Lake Superior Chippewa.

The Lawsuit

The lawsuit challenges and seeks to vacate two final rules promulgated by the EPA and the Army Corps of Engineers. The first, “Definition of Waters of the U.S.: Recodification of Pre-Existing Rules,” repealed the 2015 “Clean Water Rule” which defined the term “waters of the United States” in the Clean Water Act. The second, “The Navigable Waters Protection Rule: Definition of Waters of the United States,” replaced the Clean Water Rule and its predecessor rules with a definition of “waters of the United States” that, according to the filing, “substantially narrows the waters protected by the Act.”

The filing states; “The Navigable Waters Rule exceeds the Agencies’ statutory authority and is contrary to the Clean Water Act’s text, structure, objectives, and legislative history requiring broad protection of all the Nation’s waters, because its provisions exclude waters from the protections required and afforded by the Act.

“The Tribes also challenge the Repeal Rule and the Navigable Waters Rule as arbitrary and capricious because both rules are contrary to the evidence before the Agencies, including vast volumes of science and technical evidence in the administrative record and the uncontroverted findings made by the EPA and its own Science Advisory Board. The Agencies also failed to explain their decision to reverse prior regulations and failed to consider important aspects of the problem, including the effects on water quality and aquatic ecosystems of stripping protections for large numbers of waters, the ecological importance of protecting the excluded waters, and the effects of the reversal on the objectives of the Clean Water Act.

“These decisions are arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act.”

Threats to our water

Since my early days, I have relied on my friends at Trout Unlimited for their analysis, leadership and advocacy. It is no different in this case.

“The E.P.A.’s new policy comes with a price tag,” Chris Wood, president and CEO of Trout Unlimited, wrote in a recent op-ed in the New York Times with National Wildlife Federation CEO Collin O’Mara and former U.S. Fish & Wildlife Service director Dale Hall.

“When the E.P.A. stops protecting these streams and wetlands, states will have to foot the bill for regulatory oversight; many states may decide not to step in at all. When developers fill in wetlands, local communities will be on the hook for cleaning up more frequent flood damage. When headwaters are polluted, cities downstream will pay to treat their drinking water.”

Check out TU’s Clean Water Rule Update: April 2020 for more details. Read, Changes to the Clean Water Rule have big impacts on the ground for a look at why the rule is bad news for those of us who love our small stream fishing.

Water is my business

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As a fly fishing guide,  a member of the board of directors of the America Fly Fishing Trade Association and president of the Massanutten Chapter of Trout Unlimited, I spend a lot of time thinking about water. The fact is, I make part of my living in water and without it much of what I hold dear would be lost.

Lately I have found myself drawn back into conversations about clean water and the need to protect it. EPA has a rule making underway and there are some who would like to undermine that effort. In looking around the inter webs recently, I came across an excellent report from Trout Unlimited. Rising to the Challenge shows just how important small, seasonal and headwater streams are and why they need to be protected.

TU shares a pretty simple equation (not unlike one you see often on this blog) and points out three things that make a healthy stream.

  • Cold, clean water
  • Habitat for juvenile fish to hide, and for big fish to grown and spawn
  • Sensible rules that protect streams from development

Pretty simple Venn diagram if you ask me.

The report shows “the connection between seasonal streams that may run dry at certain times of the year (i.e., “intermittent and ephemeral” streams) and historic trout and salmon habitat.”

There are maps for 14 states, including Virginia below:

TU VA WOTUS Map

 

Download the report and learn how you can make water your business too.

If you want to learn more about EPA’s rule making here is a link > http://www2.epa.gov/uswaters

Here is some information from the Theodore Roosevelt Conservation Partnership > http://www.trcp.org/issues/wetlands/cleanwateract#.VDHMnr51qaF

 

 

Another Reason Clean Water is Important

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Most of the time when you hear “Superfund site” you think “well that can’t be good.” And you are likely to be right.

So when the work done by EPA to clean up a Superfund site results in stories like this one: Eagle River west of Vail back to being a fun place for fishing, it grabs your attention.

Ravaged by toxins spilling from the abandoned Eagle Mine near its headwaters, the Eagle River went sour in the early 1990s before the Environmental Protection Agency’s Superfund program helped it return to life over the course of a 10-year cleanup.

If the fishing downstream from the mine this week serves as any indicator, the resilient river has mounted quite a comeback.

Just another example of that simple equation: healthy habitat equals opportunity that creates economic activity.

Think Congress will get the message? Yeah that’s what I thought.

But hope, like the Eagle River, springs eternal.

 

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U.S. House Votes to Dirty Your Water

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Just to prove it is not just the renegades over at the Appropriations Committee trying to undermine conservation and environmental policy, the U.S. House of Representatives voted last week to gut the Clean Water Act by passing  H.R. 2018, The Clean Water Cooperative Federalism Act.

Conservation, Sportsmen’s and Outdoor Industry Organizations Oppose H.R. 2018

Before the vote, The American Fly Fishing Trade Association, Trout Unlimited, The Theodore Roosevelt Conservation Partnership, The Izaak Walton League of America and The National Wildlife Federation sent a letter strongly objecting to this legislation.

The bill would adversely affect waterways nationwide, and would lessen protective standards provided by the Clean Water Act for 38 years. The Transportation and Infrastructure Committee held no legislative hearings on the bill, and rushed to pass it through committee. The bill deserves far more scrutiny.

Yup, you read that correctly. This legislation didn’t get a hearing, in fact the bill was introduced at the end of May and apparently the need to gut the Clean Water is such a high priority for the Republican leadership in the House it got to the floor in short order.

Puts nation’s waters, fish and wildlife at risk.

H.R. 2018 proposes sweeping changes to the Clean Water Act that would undercut the progress the Act has made in restoring our waters over the last four decades. The bill purports to strengthen “cooperative federalism” by giving the states more control over EPA’s Clean Water Act oversight. In fact, the bill undermines the federal‐state partnership on which the Clean Water Act is based.

We would welcome committee consideration of an appropriate increased role for the states. However, as written this bill clearly is intended to weaken implementation of the Clean Water Act.

Of course water tends to travel across state lines so while one state might hold the water in the state in high regard, their up stream neighbor might not be so conscientious. That was one of the reasons for having the Clean Water Act in the first place.

Habitat equals opportunity that creates economic activity

Clean water is key to 40 million anglers who spend about $45 billion a year  and about 2.3 million hunters spending $1.3 billion each year hunting ducks and other migratory birds. The U.S. House continues to ignore the simple economics of outdoor recreation in favor of poorly conceived “solutions” to unfounded “problems”.

Who voted for this?

Wondering how your Representative voted? You can check the final vote results for Roll Call 573 here.

Why not write your Representative  and let them know what you think of their vote.

Fortunately if the Senate is silly enough to pass this legislation the Administration has put the word out that the veto pen will be uncapped.

Stay tuned…